Thursday, January 31, 2008

Associated Press, January 30, 2008, DALLAS — The dramatic events that culminated Wednesday in prosecutors identifying the real rapist in a 1982 crime that put the wrong man behind bars had the simplest of starts: a basic Internet search.

"I typed in 'aerobics' and 'sex assault'," said Matt Kelley of the Innocence Project, a New York City-based legal center that specializes in overturning wrongful convictions. "And sure enough I got this guy."

That would be Sidney Alvin Goodyear, the man the Dallas County district attorney said was guilty of the crime that sent Steven Charles Phillips to prison for 25 years.

Goodyear won't be prosecuted, though. He died 10 years ago in prison at age 50.

The Innocence Project stumbled across Goodyear's name about 18 months ago after lawyers there decided to take on Phillips' case. Among the crimes for which Phillips was behind bars was a series of bizarre assaults in which the perpetrator went into aerobics classes, forced women to disrobe at gunpoint and then made them hold poses.

Kelley, who was part of the team that researches the cases of new clients, ran across a 20-year-old newspaper story about Goodyear, who was convicted in California for similar crimes in 1982. The story mentioned Goodyear had also lived in Texas.

"How many people could be breaking into aerobics classes and making people pose?" Kelley said. "It just seemed so rare to me."

Monday, January 28, 2008

Boca Raton News, January 25, 2008 -- On the theory that youth become involved in so-called “gateway crimes” such as auto theft or burglary prior to becoming involved in more violent crimes, Palm Beach County Commissioners have approved a $127,455 interlocal agreement with the Palm Beach County Sheriffs Office for DNA testing materials, equipment and training.

The Law Enforcement Planning Council, representing the Law Enforcement component of the Youth Violence Prevention Project, has approved a plan for FY ‘08 that includes these items, commissioners said.

Commissioners said that DNA evidence for property crimes “is given a low priority compared to violent crimes.” The purchase of these items and with training, the PBSO will be able to process the DNA on these property crimes, which will result in arrests before the youth get involved in more serious crimes.”

Here's an op-ed piece from Louisiana that, with a few name changes, applies just as well to the situation here in Florida. Innocent people who've spent years incarcerated for crimes they did not commit are not getting compensated. And the "lucky" ones, the ones who do receive some compensation amount, usually do so only after spending years fighting for it.

In Florida, where Alan Crotzer will be trying for the third time to get our legislature to compensate him for the 24 years, 6 months and 13 days that he spent behind bars for a crime someone else committed, one wonders where is the moral compass guiding our lawmakers? Are they so afraid of appearing soft on crime that they avoid doing the right thing for those found innocent of crimes, as if the association with crime itself is too close?

If our representatives and senators were truly concerned about crime, they would be outraged at the injustices perpetrated when innocents are locked up and, coincidentally, the guilty are left free to commit more crimes. Freeing (and compensating) the innocent is not being soft on crime. It is instead being wedded to the truth, the simple truth that innocent people do not belong behind bars, period. It is what we do when we discover those instances where mistakes were made, and how we treat the victims of those mistakes, that add to our measure as a civilized society.

The Shreveport Times, January 27, 2008 -- "The arc of the moral universe is long, but it bends toward justice.—" The Rev. Theodore Parker, 19th century minister and abolitionist

There are those who deserve to be in prison and sometimes there are those who just don't belong there. I am always particularly moved when innocent men are released from prison. I am, however, always saddened that they spent one day behind bars. It's refreshing on one hand that eventually the system allows exoneration, but depressing on the other hand that the system sometimes incarcerates the innocent.

Rickey Johnson spent nearly 26 years in one of America's bloodiest and notorious prisons for a rape he knew he didn't commit. Of course, no one beyond his closest friends and relatives believed him because everyone locked up says they didn't do it. Not Rickey Johnson. He spent almost three decades in a place where he didn't belong paying a debt to society he didn't owe. Thanks to DNA evidence he has been released. He is now a free man.

How does this continue to happen? No one is dare suggesting the criminal justice system come to a grinding halt or that a moratorium be placed on all harsh sentences. But, the process of justice must be reviewed to include all avenues of proving innocence. Of course, the legal standard is "innocent until proven guilty," but once a defendant is in a courtroom, the opposite is usually true.

A young man with potential was wrongly identified and sentenced to spend the rest of his life as a number. While he stresses he isn't bitter it would be understandable. If he truly isn't bitter he's a better man than most. At some point his cause certainly seemed hopeless and perhaps he had resigned himself to live out his existence on "The Farm." To call what happened to Rickey Johnson and others like him across America a "miscarriage of justice" is an understatement. It is good to know that groups like the Innocence Project are fighting to show there are flaws in the system.

Wednesday, January 23, 2008

Associated Press, Published January 21, 2008, TALLAHASSEE - Alan Crotzer is working at a landscaping company, hoping one day to be compensated for the 24 years he spent in prison for a rape he didn't commit.

Florida lawmakers have for a couple of years failed to pass a bill to pay him - and he's again asking the Legislature for $1.25-million for the two decades of freedom he gave up.

It's too bad for Crotzer that he doesn't live somewhere else. Several states have automatic compensation for people who have been wrongfully imprisoned and then released - something that's happening more and more because of increasing use of DNA to prove innocence.

But Florida remains one of 28 states that don't guarantee compensation for those who spent precious years behind bars for something they didn't do. Nine men have been freed by DNA in Florida in recent years, but only one has received money.

Crotzer, 47, is seeking money for himself - but he'd rather the state make money available for anyone in his situation. He said most men released after years behind bars - especially those who were, like him, young when imprisoned - have a hard time starting over without help. They're usually broke, and most have no job prospects. All they really know is prison life.

Tuesday, January 22, 2008

The following editorial from a Louisiana newspaper could have been written (with only the name and case facts changed) by any of a number of papers in states across the country. Even though the federal government passed legislation in 2004 that encourages all states to have laws compensating their wrongly imprisoned citizens, only 22 have so far followed through.

The Shreveport Times, January 20, 2008 -- Rickey Johnson's release from prison after 25 years puts him in the category of nine other Louisianans who were exonerated of crimes for which they were wrongly imprisoned.

Johnson, of Leesville, was officially cleared of the aggravated rape charge of which he was convicted in 1983. The photo in which Johnson was identified was eight years old. He was convicted of the rape in January 1983 and sentenced to life without parole.

According to the Innocence Project, eyewitness misidentification is the leading cause of wrongful convictions, a factor in 75 percent of the 212 DNA exonerations nationwide.

The Innocence Project, established in 1992, uses DNA testing technology and the help of law students to review past criminal trials to determine if accused individuals were convicted under false pretenses.

But what's next for Johnson? "I can never get back what I lost and I'm not going to try. I'm just going to focus on the future," he said.

Confronting an ever-changing world after serving years in prison can be challenging at best. Social skills diminished by countless years in prison don't translate well in the outside world. And what about job skills? And education?

No amount of money can get back what was lost by serving a quarter of a century in prison for something that he didn't do. Certainly a system that robbed Johnson of a significant part of his life owes him more than a get-out-of-jail-free pass. But it's a start.

Although in Louisiana, it's happening rarely, with compensation awarded to only two of the 10 men who have been exonerated by the Innocence Project.

NOTE: Although Louisiana has a compensation law on the books, it currently pays only $15,000 per year of wrongful incarceration with a cap of $150,000. That's well below the federal standard of $50,000 per year ($100,000 for death row cases).

Of course it's still better than Florida where exonerees must go to the state capitol (without benefit of a bill on the books) and beseech the legislature for compensation in the form of an individual claims bill. Ask Alan Crotzer what that's like; he's made the trip for two years straight and is set to return, hat in hand, for a third round of pleading.

It's a disgraceful and humiliating exercise that should embarrass every legislator in Tallahassee. When the State has robbed a man of more than half his life, it's rather unsettling to realize that the victim must then spend years begging said State to do the right thing. Maybe this detestable dance explains why, of Florida's nine exonerees, only Wilton Dedge has so far been paid.

Friday, January 18, 2008

Medill Reports, Chicago, by Rob Runyan, Jan 17, 2008 -- After serving 30 years in prison in a double-murder case, Johnnie Lee Savory is free on parole, but he still feels trapped by his past. Now Savory, 45, is reaching out to his last option for exoneration, Gov. Rod Blagojevich, to ask the governor to order DNA testing that Savory is sure will finally clear his name.

“It wasn’t about me coming home,” Savory said in a news conference Thursday. “It was about me proving my innocence.”

What sets Savory's mission apart from many others is that he has several former prosecutors pushing for the DNA test.

Former U.S. Attorney Thomas Sullivan and four other federal prosecutors sent a letter to Blagojevich this week asking that he order the test.

In addition, authors John Grisham, Noam Chomsky and Studs Terkel and a host of lawyers, professors and religious leaders also lent their names to Savory's cause.

Wednesday, January 16, 2008

KALB.com, News Channel 5, Alexandria, Louisiana, January 14, 2008 -- A man who has been behind bars for 26 years for a rape he did not commit is a free man. Rickey Johnson was released today in Many after DNA results proved his innocence. He was 26 when he was arrested and is now 52.

The following is a press release from the Innocence Project, a group that works to exonerate wrongly convicted people through DNA testing.

“Rickey Johnson lost more than a quarter of a century, nearly his entire adult life, to a wrongful conviction. He had three young children when he was arrested, and a fourth was born shortly after he was incarcerated; all of those children are now adults, and he has grandchildren he’s never met,” said Vanessa Potkin, the Innocence Project Staff Attorney representing Johnson. “Rickey Johnson’s long nightmare will be in vain if we don’t learn from it and make sure other people in Louisiana have access to DNA testing that can prove their innocence.” In Baton Rouge tomorrow, Johnson will join other people exonerated by DNA testing in Louisiana to call for statewide access to DNA testing and policies to ensure that evidence is properly preserved so DNA testing can be conducted.

Johnson was arrested in 1982 for the rape of a woman in Many in July 1982. The victim in the crime said a man broke into her home at 1 a.m. and stayed for several hours, during which he raped her. She later identified Johnson in a photo array which included an eight-year-old photo of Johnson and just two other photos. Johnson was convicted of the rape in January 1983 and sentenced to life without parole. He has been at Louisiana’s Angola Farm Prison ever since.-------------------“If police and prosecutors had not focused on Rickey Johnson so early in their investigation – and if a proper eyewitness identification procedure had been used instead of a deeply flawed photo lineup – the real perpetrator might have been brought to justice sooner and might not have been free to rape another woman in the same apartment complex,” Potkin said. “Anyone who doubts that our criminal justice system is stronger when we take steps to prevent wrongful convictions should take a close look at Rickey Johnson’s case.”

As in Tommy Arthur's case in Alabama (where Governor Riley has so far denied DNA testing, even though Arthur is on Death Row and faces execution when the Supreme Court reinstates the death penalty), the following makes me just throw up my hands and ask "why." Or more precisely, "why not?" Why not allow DNA testing on evidence that could conclusively prove someone's innocence (or guilt)? Especially, as in Arthur's case, someone's life lies in the balance. Although Steve Fasano's Mississippi case doesn't deal with life or death, it does involve freedom vs wrongful incarceration. Why not allow DNA testing on evidence that could possibly get an innocent man out of prison? What is it about finding the truth that seems to scare so many prosecutors and judges?

Clarion Ledger, by Jerry Mitchell, January 10, 2008 -- A federal judge decided today he wants to hear expert testimony before deciding whether former Jackson police officer Steve Fasano can test possible DNA from a bank robber's disguise in hopes of exonerating him in a 2002 robbery.

U.S. District Judge William Barbour Jr. said in a hearing that if he had to rule today, he would deny the request but wants to wait to wait to hear testimony from a DNA expert before making his final decision.

Fasano, who has passed a lie detector test, insists he is innocent of the crime for which he’s serving federal time.

The former Jackson police officer did not attend today. He is serving his nearly four-year sentence at a federal prison medical center in Rochester, Minn.----------------The robber’s outfit was checked out for Fasano's 2005 trial, but prosecutors told defense lawyers afterward it had been lost. That evidence turned up a year later in a prosecutor’s closet — four months after Fasano left for prison in April 2006.----------------Qualls, who is associated with the Center on Wrongful Convictions at Northwestern University School of Law, said if someone else’s DNA is found on the outfit instead of Fasano’s, it raises a “near certainty” the bank robber was somebody else.

He said Fasano waived his right to DNA testing long ago. He said the defense had access to the robber’s outfit and failed to test it.

If Fasano is given a second bite at this apple, it would set a dangerous precedent, Starrett said.----------------Any thinking person concerned about true justice would choke on Starrett's apple, but his sentiment is sadly all too common in today's postconviction arena.

To date, the state of Mississippi has exonerated only one person through DNA testing. The following are some excerpts from a long interview with John Grisham, published last week in the Jackson Free Press. Grisham expresses his concerns about problems with Mississippi's postconviction laws (or lack thereof) and his hopes for positive changes advocated by the state's new Innocence Project.

Jackson Free Press, by Ronni Mott, January 9, 2008 -- It was Ron Williamson’s obituary in the Dec. 9, 2004, issue of The New York Times that caught attorney and author John Grisham’s eye.“It had all the elements of a novel,” Grisham said in an interview with the Jackson Free Press. “The small town Southern feel to it; the small town sport hero going off to make his mark in the major leagues and failing; a grizzly murder; a wrongful conviction; a trip to death row; insanity; a near execution; exoneration; the eventual conviction of the real killer; a lawsuit to recover damages. I could not make that up, and if I did make it up, nobody would believe it. It’s too rich to pass up.”

After 11 years on Oklahoma’s death row, DNA evidence proved that Williamson was not the killer of 21-year-old Debra Carter. He and Dennis Fritz, who a jury in Ada, Okla., also convicted of the crime, walked away free men on April 15, 1999.

But for Ron Williamson, exoneration came too late; he was unable get his life back on track. His long history with drug and alcohol abuse—compounded by bipolar disease, personality disorders and a mild form of schizophrenia, all untreated during his incarceration—had taken their toll. The one-time minor-league baseball hero died of cirrhosis of the liver at age 51 on Dec. 4, 2004, less than five years after his release. At the time of his death, people mistook him for a man 30 years older, his hair prematurely white and his skin sallow around his empty, sunken eyes.

Grisham was so intrigued by the story that he spent 18 months writing his only non-fiction book to date, “The Innocent Man: Murder and Injustice in a Small Town,” which was published in October 2006.-----------------------------------In January 2007, Grisham and a group of Mississippi lawyers, law professors and retired judges opened their wallets to fund the Mississippi office of the Innocence Project, now headquartered in Oxford. Until then, the Louisiana IP office was also helping with Mississippi cases.

“We just all came together at one time with some other attorneys who were willing to write checks,” Grisham said. “The law school at Ole Miss got on board quickly; the university got behind it.”

In Mississippi, before the Innocence Project can make meaningful strides correcting wrongful prosecutions and convictions, the laws have to change.---------------------------------The task is daunting. In Mississippi, once a defendant’s trial is over and he—it’s usually a man, a black man—receives a sentence, the deck is stacked against him. Reflecting the state’s long, sad history of racism, Mississippi has no laws on the books requiring courts to preserve evidence, no laws that allow defendants access to post-conviction DNA testing, no laws that require police to record interrogations, and on the slim chance of exoneration, no laws to compensate defendants for the lost years of their lives.-------------------------------Today, Mississippi also lacks forensic oversight, leaving the door wide open for the introduction of junk science and forensic “experts” without proper certification. The top position, a board-certified medical examiner, is mandated by state law, but the Legislature has failed to fund the position, leaving coroners and district attorneys leeway to shop for autopsy results from “their favorite medical examiners,” reported reason.com in November 2007. Those examiners, such as Steven Hayne, whose testimony the state Supreme Court recently threw out in the case of Tyler Edmonds, inordinately tend to favor the prosecutors, who can afford to pay for their testimony.

Wednesday, January 9, 2008

Today, the Florida Times Union published an article that begins to unlock the prosecutorial misconduct that took place in the case of Chad Heins, Florida's 9th and most recent DNA exoneration:

Only weeks before Chad Heins' murder trial in 1996, a Jacksonville prosecutor sent a memo asking a state crime lab supervisor to downplay findings that stray hairs found on the victim's body came from an unknown person. "I need to structure your testimony carefully so as to convince the jury that the unknown hairs are insignificant," Assistant State Attorney Stephen Bledsoe wrote in a letter recently obtained by the Times-Union.

In December 1996, a jury convicted Heins of the first-degree murder of his sister-in-law in her Mayport apartment. He was sentenced to life in prison until new DNA tests led to his release last month.

Some prosecutors will argue that this is simply just a case of Mr. Bledsoe alerting his witness of the intent to perpetuate testimony that will raise possible reasons why unknown hairs were found at the scene of this murder. In fact, that is exactly what Mr. Bledsoe's boss stated:

But State Attorney Harry Shorstein called Bledsoe, who he's known for 35 years, one of the most ethical prosecutors in his office. Bledsoe probably wanted to ensure that the crime lab witness testified about possible explanations for the unknown hairs, Shorstein said.

"I don't like the wording of the letter because I think it does lead to conjecture or suspicion of wrongdoing," he said. "But the important thing is he disclosed that evidence. Steve Bledsoe is about a straight an arrow as any lawyer I've ever worked with."

But this letter from Mr. Bledsoe is far more nefarious, despite his current boss' protests to the contrary, arguing about the inartful wording of this letter and Bledsoe's supposedly high ethical status. In the face of evidence that casts serious doubt on Chad Hein's guilt (nevermind the recent DNA testing of these hairs, fingernail scrapings from the victim, and semen found on her bed sheet that all pointed to the same unknown male perpetrator), Bledsoe is trying to improperly influence his witness, a State of Florida employee, to conceal the truth about this hair evidence; to convince the jury that it really isn't what it truly is.

What's more, before Chad's exoneration, current prosecutors, led by Harry Shorstein, sought to prevent introduction of this letter into evidence at a new trial, clearly understanding the import of the letter and what it would say to the jury about the probative value of this hair evidence.

Chad's attorneys used phrases like "cavalier disregard for the actual evidence." Another attorney made the point that if the roles were reversed, the prosecution would be trumpeting this letter as the defense's attempt to improperly influence a witness.

Regardless of how you characterize these actions, it's a sad commentary on the tunnel vision of the Florida prosecutor bar writ large, where we have become more interested in convictions at all costs than finding the truth.

Kudos to Paul Pinkham for beginning the public dissemination of misconduct in this case. To read more about this the Chad Heins case out of Jacksonville, Florida (Duval County),go here.

Thursday, January 3, 2008

This is a great story on what's going on at IPF, including updates on three of our exonerees (Chad Heins, Larry Bostic, and Alan Crotzer), and much, much more. Here is the lede:

Clutching his worldly possessions in one small packet, Chad Heins walked out of the Duval County Jail on December 4 a free man, after spending nearly 14 years locked up for the stabbing death of his sister-in-law he’d insisted from the beginning he did not commit.

With a broad grin, Heins, now 33 — only 19 when he was sentenced to life in prison — gratefully hugged his lawyers one by one.

Among them were Jennifer Greenberg and Seth Miller of the Innocence Project of Florida, buoyed by yet another flesh-and-blood reminder of the merit of their nonprofit legal clinic’s work: the ninth DNA exoneration in the state and the 210th nationwide.

Also, the Bar News included a cut away on our creation of the Exoneree Emergency Fund, which is designed to provide modest, but immediate assistance to our exonerees when they get released from prison until they are compensated by the legislature. The fund will obviously not meet all of their needs but can be used for general transition needs, such as clothing, food, housing assistance, medicine, etc. If you would like to contribute to this vital fund, go to our contribution page to donate online or, for information on where to send contributions through the mail, go here. Whether contributing online or by mail, please indicate that you would like your donation earmarked for the Exoneree Emergency Fund.

Thanks to Jan Pudlow of the Florida Bar News for spending multiple days at our office with us and for putting together such a nice piece which will be viewed by every licensed lawyer in Florida.

Central Florida News, Tuesday, January 01, 2008 --The new year brought new hope for Alan Crotzer. The former St. Petersburg man was locked up for more than two decades for a crime he did not commit.

DNA testing helped secure his freedom, but he said he wants more.

Only a couple of years before, Crotzer was still serving a life sentence for double rape, until from the bowels of a Hillsborough County government building came his ticket home: Old DNA evidence, resounding proof he was innocent.

"If you didn't do it, you didn't do it, and for me, to be held accountable for a court upsetting my life -- I went in there at 20, and I came out at 45 years old, and to sit here and talk to you, I'm blessed, but there are those that are going to die in there," Crotzer said.

Wednesday, January 2, 2008

On December 19, 2007, a Pasco County judge granted Samuel Jason Derrick post-conviction DNA testing on evidence in this case. From the December 28, 2007, St. Petersburg Times story:

Derrick, his family and his lawyers hope the latest advances in forensic technology will exonerate the 40-year-old Moon Lake man in the 1987 murder of storekeeper Rama Sharma.

"I'm just thankful that the truth is going to come to light," said Derrick's former wife, Cherie.

A bloody remnant of a white T-shirt, a partially eaten hot dog, blood found under a picnic table and scrapings from the victim's fingernails will all be tested, the judge ordered Dec. 19. The defense's hope is that viable DNA can be recovered from the evidence that will implicate someone other than Derrick in the stabbing murder of Sharma.

Derrick has maintained his innocence since he was arrested for this 1987 murder and has spent half of his 40 years on this planet in prison, on death row. Previous DNA testing on fingernail scrapings was performed in 2002 but didn't yield a result. Derrick's attorneys hope that the more exacting Y-STR DNA testing now used will yield an excluding result this time around:

The fingernail scrapings were tested in 2002 but gleaned no DNA profiles, the defense motion said. But they could still yield something to a more sensitive DNA test called Y-STR now available, according to the defense motion, that "targets genetic markers found on the Y-chromosome, which only males possess."

"It's really vital that we use Y-STR or one of the really cutting- edge tests that have been developed," said Alba Morales, Derrick's Innocence Project attorney. "Because it really improves the chance of getting a result from what is by now a fairly degraded sample."

Mr. Derrick is represented pro bono by Alba Morales of the New York Innocence Project and appointed attorney Harry Brody.

Esdras Cardona was recently convicted of sexual battery for the April 2006 rape of a pastry chef at the exclusive Everglades Club in Palm Beach, Florida. The evidence central to the prosecution's case was the witness ID of Cardona, the perpetrator's t-shirt found at the scene which was the same brand and type of shirt found in Cardona's bedroom, and a toothbrush found at the scene that did not belong to the victim and contained DNA which was miraculously consistent with that of Cardona. The case is chronocoled in this Palm Beach Poststory.

One would expect prosecutors, eager to obtain a conviction, to want to skip over additional scientific testing that could yield probative evidence of guilt or innocence. The prosecutors went to trial thinking (and were correct) that they had enough evidence to score a conviction of Mr. Cardona without testing the two hairs with roots collected from the perpetrator's t-shirt:

Former Assistant State Attorney Ron Herman handled the case in the months before Cardona's trial. Herman said he was confident in the evidence he had: a rape victim's strong eyewitness ID of Cardona and his toothbrush found at the scene. "I thought it was solid to support a conviction," Herman said. Hairs from the bed and T-shirt - they were a gamble. If none belonged to Cardona, it would not point-blank exonerate him, Herman says. And it may have mucked up the prosecution's case against him. Besides, Herman knew Cardona's defense team had asked to have the hairs tested at a private DNA lab - an effort he did not oppose.

So if the prosecutor doesn't DNA test the hairs and his rationalization is that a result excluding Cardona as the contributor of those hairs would seriously muck up the prosecution's case, possibly raising enough reasonable doubt to support an acquittal, any defense attorney, paid in excess of $25,000 to represent Cardona, would surely obtain the testing? Right?:

In the months after Cardona's arrest in April 2006, the attorneys began their work, deposing witnesses, Amezaga's flying to Maine to take the victim's statement. In January 2007, Amezaga asked Circuit Judge William Berger to allow the defense to test the hairs at a private lab in Broward County, which the judge did. Amezaga said then Cardona's family would pay for the testing. Then their money ran out.

When a person who has paid a private lawyer runs out of money, he can have the state cover some basic costs by being declared "indigent for due process." Taxpayers then pay for the critical elements every defense deserves, including forensic testing and experts. The money is paid by the Justice Administrative Commission, an agency in Tallahassee that monitors requests.

. . .

In February, Amezaga received an invoice from the private Broward lab for the DNA testing. It cost a small fortune - $575 per hair, $350 per hour to review a case and $2,800 per day for expert testimony. Way in excess of what the JAC was willing to pay. In late April, Cardona's attorney returned to court and told [the judge] . . . that testing cost much more than the caps on costs allowed. . . . The commission, though, follows court orders from judges. And at that two-minute hearing in late April, Berger gave Cardona a critical ruling: "I find extraordinary circumstances and a need to have this particular lab engaged," the judge said. "Therefore the cap ... this will exceed it if necessary."

It seems that Mr. Cardona is in a great position to get his testing. What's more, is that these hairs have roots which makes DNA testing easier and implies that the hairs were forcefully removed (i.e. through a struggle), rather than deposited on the white t-shirt through casual contact or transference. So Mr. Zealous Defense Attorney took the judge's order for extraordinary costs to the JAC, right?

Well not so much:

Yet no test on the hairs in Cardona's case was ever done. Amezaga said it was not a strategic decision not to test the hairs; it was a financial one. He was unable to square the $6,000 cost of tests with what the state was willing to pay, he said.

But why was that? Berger had ruled Amezaga could exceed caps and spend more to get the hairs tested. The attorney looks taken aback when asked about this and refuses to say why. "You can draw your own conclusions about that," Amezaga said.

Just before Cardona's trial began in June, he met with Amezaga. That's when Cardona learned the hair evidence in his case had not been tested. Amezaga said the best legal advice he could give was for Cardona to fire him and get the public defender's office to represent him. That office, presumably, would be able to pay for the testing. Then the tens of thousands of dollars Cardona and his family had paid the attorney might all be for naught.

So Cardona went to trial [without the DNA testing and was convicted].

No one can truly know whether the toothbrush was planted at the crime scene or whether Esdras Cardona is innocent. But there is little question whether he deserved a better, more zealous, defense. His case is now in the hands of the West Palm Beach public defender and it is likely he gets his testing on appeal or in post-conviction.

As for Mr. Amezaga, he will likely be the subject of a non-frivolous claim of ineffective assistance of counsel, where he won't be able to sidestep the question of why he didn't get the DNA testing, when he had a judge's order allowing for the full expense of that testing to be paid by the State.